First National Bank v. Tyson, 133 Ala. 459

133 Ala. 459 | Ala. | 1901

HARALSON, J.

The cause was submitted for decree on the pleadings, the exceptions of complainant to the three pleas filed by the defendant, the motions to discharge and dissolve the injunction, and on the demurrer to the bill, accompanied by the several affidavits filed by the complainant and defendant.

It may be stated broadly, since it seems to be everywhere settled in this country, that a building or other structure of like nature, erected on a street — which includes its sidewalks — without the sanction of the legislature, is a nuisance; that public “highways belong from side to side and from end to end to the public,” and they are entitled to a free passage along any portion of it, not in use by some other traveller, and there can be no rightful permanent use of the way for private purposes. — Elliott on R. & S., § 645. This court has said: “The public have a right to passage over a street, to its utmost extent, unobstructed by any impediments, and any unauthorized obstruction which necessarily impedes the lawful use of a highway is a public nuisance a.t, common law.” — Costello v. The State, 108 Ala. 45. Again, it is said: “Any permanent obstruction to a public highway, such as would be caused by the erection of a fence or building thereon, is, of itself, a nuisance, though it should not operate as an actual obstacle to travel, or work a positive inconvenience to any one. It is an encroachment upon a public right, and as such, is not permitted to be done by the law, with impunity.” — State v. Edens, 85 N. C. 526.

• It is again well settled, that a municipal corporation cannot license the erection or commission of a nuisance •in or on a public street. “A building,” says Dillon, “or other structure of like nature, erected upon a street, without the sanction of the legislature, is a nuisance, and the local corporate authorities of a place cannot give a valid permission thus to occupy streets, without express power to this end conferred on them by the charter or statute. The usual power to regulate and control streets has even been held not to authorize the municipal authorities to allow them to be encroached upon by the adjoining owner, by erections made for his ■exclusive use and advantage, such as porches extending into the streets, .or flights of stairs leading from the ground to the. upper stories of buildings, standing on the line of the streets. The person erecting or maintaining a nuisance upon a public street, alley or place, is liable to the adjoining owner or other .person who suffers special damages therefrom.” — 2 Dillon’s Mun. Corp., § 660, and authorities there cited; State v. Mayor, 5 Port. 279; Webb v. Demopolis, 87 Ala. 666; s. c. 95 Ala. 116; Hoole v. Attorney General, 22 Ala. 194; Costello v. The State, supra; Douglas v. City Council, 118 Ala. 599.

There can be no question but that the erection of the proposed pillars by defendant in front of its building on the street, and which "are to extend, as admitted, twenty-two inches beyond the west line of said building onto the sidewalk, is a public nuisance, to abate which, the public might maintain a bill. — Reed v. Mayor, 92 Ala. 34; 1 Dillon on Mun. Corp., § 374; Elliott on R. & S., §§ 664, 665; authorities supra.

It is also well understood, that, in addition .to the right of the public to maintain a suit in equity for an injunction against the erection and maintenance of a public nuisance, a private citizen who sustains an injury therefrom, different in degree and kind from that suffered by the general public, may maintain a suit in ■equity to enjoin it. — Cabbell v. Williams, 127 Ala. 320; Mayor v. Rodgers, 10 Ala. 36, 47; Elliott on R. & S., § 665. As to the injury being irreparable, or not capable of full and complete compensation in damages, as is sometimes said to be the requirement in case a private citizen complains to abate it, Mr. Elliott observes in the section referred to, that “the phrase, ‘irreparable injury’ is apt to mislead. It does not necessarily mean, as used in the law of injunctions, that the injury is beyond the possibilities of compensation in damages, nor-that it must be very great. And the fact that no actual damages can be proved, so that in an action at law the jury could not award nominal damages only, often furnishes the very best reason why a court of equity should interfere in cases where the nuisance is a continuous one.” — Ogletree v. McQuaggs, 67 Ala. 580.

On the same subject Mr. Wood states, that “By irreparable injury, is not meant such injury as is beyond possibility of repair, or bevond possibility of compensation in damages, nor necessarily great injury or great damage; but that species of injury, whether great or small, that, ought not to be submitted to on the one-hand, or inflicted on the other, and which, because it is so large on the one hand, or small on the other, is of such constant and frequent occurrence that no fair or reasonable redress can be had therefor in a court of law.” — 2 Wood on Nuisances, § 778 and n.; 3 Pom. Eq. Jur., § 1349; Whaley v. Wilson, 112 Ala. 630.

The bill alleges, “that said encroachment JMf the erection of said pillars on the sidewalk] upon said highway is a public nuisance, not only infringing upon the rights •of the commonwealth of Alabama, but if same are completed and placed in position, as now contemplated by the First National Bank, said encroachment will greatly damage your orator beyond that which is common to-the public generally, by injuring and depreciating the value of your orator’s property, and by destroying the symmetry of your orator’s building along.the highway, which is valuable, and by obstructing the light, air and view necessarily ensuing therefrom, and by depreciating the rental value of your orator’s property, in that the view of persons going south along said highway north of your orator’s building, will be cut off from your-orator’s building.” He also avers that the tenants in his building are valuable to him, and some of them have, informed complainant, that if said columns encroach on said highway, or if any part of said building-of defendant encroaches on said highway, they will no-longer remains his tenants. Here is averment of special damage to complainant, apart from that which may be suffered by the public at large.

It appears that the bases of the columns proposed to be erected in front of defendant’s building are outside of the west wall of the main structure to which they are expected to be attached, and as is averred and not denied, “are to extend from the sidewalk, sixteen feet in height, more or less, and are to extend two feet more or less (22 inches seems to be the real extent) beyond the established building line on said highway, into and upon the street.” It is wholly immaterial, it may be added, whether these columns are designed to be for ornament or utility, or whether defendant will be prejudiced more by the temporary injunction against their erection, than complainant might be, if it had not been granted.

We try the case on this appeal, on the pleadings as they are presented, in advance of any evidence taken in the cause. Whether the evidence when taken will, on submission of the case for final disposition, sustain the averments for relief or not, we are not given to know. It is a case as presented, as the court below held, and we think properly, where, everything considered, the complainant was entitled to his injunction, and its continuance, to await the final disposition of the cause. Harrison v. Yerby, 87 Ala. 185.

The defendant, it may be conceded, owns as it claims, to the center of the street in front of its building, and its right to the use of its property in any way it pleases, subject only to the easement of the public along the street, as a thoroughfare of travel and commerce; but it denies to complainant the right to light,air and view, except from that part of the street immediately in front of his property. So far as light and air are concerned, the subject has been much discussed, and may be taken as well settled, but the question of view, if distinguishable from these, has not often arisen. The easement of light and air is placed, on what would seem to be good reason, and' certainly on authority, along with the easement of access, the one no more important than the other, except in degree. This easement of access, says Mr. Elliott, “is so far regarded as private property that not even the legislature can take it away and deprive the owner of it without compensation. In New York and in most of the States in which the question has arisen, the abutter has an easement in the light and air over the street, and 'above the surface there can be no lawful obstruction to the access of light and air, to the detriment. of the ‘ abutting owner/ ” In support of the text, note 1, many authorities from different courts are cited, including the case of the N. Y. Elevated Railroad Co. v. Fifth Nat. Bank, 135 U. S. 432. In the case last cited the court say: ''The owners of lands abutting on a street in the city of New York have an easement of way and of light and air over it; and through a bill in equity for an injunction, may recover of the elevated railroad company full compensation for this easement; but in an action at law, cannot, without the defendant’s acquiescence, recover permanent damages, measured by the diminution in value of their property, but can recover such temporary damages only as they have sustained to the time of commencing action.”

From the well considered case of Barnett v. Johnson, 15 N. J. Eq. 481, we quote approvingly what we consider to be especially applicable to the case in hand, that there are ''Two classes of rights, originating in necessity and in the exigencies of human affairs, springing up coeval with every public highway, and which are recognized and enforced by the common law of all civilized nations. The first relates to the public passage, the second, subordinate to the first, but equally perfect and scarcely less important, relates to the adjoining owners. Among the latter is that of receiving from the public highway light and air * * * When people build upon the public highway, do they inquire or care who owns the fee of the road-bed [or street] ? Do they act or rely on any other consideration except that it is a public highway, and they, the adjacent owners? Is not this a right of universal exercise and acknowledgment in all times and in all countries, a right of necessity, without which cities could not have been built, and without the enforcement of which they would soon become tenantless? It is a right essential to the very existence of dense communities. * * * It is a right founded in such an urgent necessity that all laws and legal proceedings take it for granted. A right so strong that it protects itself, so urgent that, upon any attempt to annul or infringe it, it would set at defiance all legislative enactment and all judicial decision.” Dill v. Board of Education, 10 L. R. A. 276; Field v. Barling, 149 Ill. 556. s. c. 24 L. R. A. 406.

In the ■ case of Dill v. Board of Education, supra, touching the rights of parties to streets dedicated to public use, the court said: “If we inquire what those rights are, we find that they are twofold: first, a right of access from the abutting property, and a passage to and fro over it in all its extent; and, second, a right of light, air, prospect and ventilation. These rights are quite distinct from each other, and capable of being separately exercised and enjoyed. The right of light, air and ventilation may be enjoyed fully without the least exercise of the right of access and passage. That this right of light, air, prospect and ventilation exists is clearly established by the authority of this and other 'States.”- — Hallock v. Scheyer, 33 Hun. 111.

It is difficult to understand, why an easement of view from every part of a public street, is not, like- light and air, a valuable right, of which the owner of a building on the street, ought not to be deprived by an encroachment on the highway by a coterminous or adjacent proprietor. The right of view or prospect, is one implied, like other rights, from the dedication of the street to public uses. As was well said by the learned judge below in respect to this right, “It seems to be a valuable right appurtenant to the ownership of land abutting on the highway, and to stand upon the same footing, as to reason, with the easement of motion, light and air, and to be inferior to them only in point of convenience or necessity, and that an interference with it is inconsistent with the public right acquired by dedication. The opportunity of attracting customers by a display of goods and signs is valuable, as I have no doubt the streets of any city in the world will demonstrate.” As to these and all other matters brought forward, the injunction should await the decision of the canse when tided for final decree, on pleadings and proof taken.

The demurrer on the ground that it is not alleged in the bill that complainant had applied without success to the authorities of the city of Montgomery for relief, is wanting in merit. He had a right to file the bill without reference to any action taken by the city. — Douglass v. City Council of Montgomery, 118 Ala. 611. The demurrer as to any of its grounds was properly overruled.

From what has been said, it will appear that the first and second pleas were properly held to be without merit. 'See L. & N. R. R. Co. v. M. J. & K. C. R. R. Co., 124 Ala. 162; Webb v. Demopolis, 95 Ala. 116, respectively, as to each of these pleas. The court held, that the third plea, as originally filed was good; but as amended was bad for duplicity, — citing Story Eq. PI. 653. Without considering the third plea as originally filed, we concur with the court below, that as amended, it was bad for duplicity. There ivas no error in overruling the motion to discharge and dissolve the injunction, and,'finding no reversible error in any of the rulings of the court below, let its decree be affirmed.

Affirmed.

Tyson, J., not sitting.